Litigation Costs and Settlement Offers

Category: Ontario Family Law Procedures

Legal Costs in Ontario Divorce Litigation: Why Might You Pay the Opposing Party's Fees Even When You Win?

Last Updated: August 2026

Parties in family law cases often only seriously confront the issue of costs after the case has concluded, only to discover a counterintuitive reality: even if you win on the primary issues, you might still be ordered to cover a portion of the opposing party's legal fees. The reason is that Ontario courts do not determine cost awards based simply on a "winner takes all" approach. Instead, they simultaneously consider three factors: the outcome, the conduct of the parties, and offers to settle.

Below are the core principles used by Ontario family courts to determine legal costs, along with strategies to mitigate your cost risks.

Mechanisms of Cost Awards and Practical Key Points

Basic Principle: The Successful Party is Generally Entitled to Costs

The starting point is clear—the successful party is generally entitled to have a portion of their legal costs paid by the unsuccessful party. However, this is just the starting point, not the end. When deciding the actual amount, the court will also consider the complexity of the case, the value of the issues in dispute, the reasonableness of the time spent by both sides, the conduct of the parties, and any offers to settle.

Conduct: How You Behave in Litigation Impacts Your Costs

Ontario family proceedings place high demands on the conduct of the parties. Failing to provide or delaying financial disclosure (the most common issue), advancing claims that clearly lack merit, unnecessarily prolonging proceedings, repeatedly requesting adjournments, bringing unnecessary motions, or exaggerating facts in written materials will all be reflected in the costs award. In severe cases of bad faith, the court may award costs on a full recovery basis. In family law cases, "playing by the rules" has its own economic value.

Offers to Settle: The Most Powerful Tool to Influence Cost Outcomes

Ontario's Family Law Rules contain a formal Offer to Settle mechanism. If you make a written offer to settle that the other side does not accept, and the final judgment is as favorable or more favorable to you than your offer, the court may order the opposing party to pay your costs incurred from the date the offer was made. This essentially shifts the financial risk of "fighting it out" onto the party who refused to settle. An offer must be made early, be specific and enforceable (with clear amounts, times, and methods), and be genuine. Do not miss the opportunity to build cost protection simply because you feel that "making the first offer shows weakness."

Weighing Costs Against "Is It Worth Fighting?"

At every decision point, the real question clients should ask themselves is not "Am I right?" but rather: "If I hold my ground and win, how much more will I get? And if I lose, how much will it cost me (including the opposing party's costs)?" For issues where the disputed amount is small, the cost of continued litigation often exceeds the value of the dispute itself. A competent lawyer should give you an honest assessment at this stage, rather than facilitating a meaningless depletion of your resources.

Five Practical Tips for Clients

01 Clarify the billing structure from the very beginning, and request regular updates on incurred costs as the case progresses. Out-of-control legal bills almost always start with being "afraid to ask."

02 Prioritize your disputed issues. Identify what you genuinely need to fight for versus what you want to fight for out of emotion. The latter is the primary driver of runaway legal costs.

03 Provide complete and clean financial disclosure at once. This is the single most effective action that simultaneously lowers your own legal fees and reduces the risk of being ordered to pay the other side's costs.

04 Take every Offer to Settle you receive seriously. It is not just a proposal; it is simultaneously establishing cost protection for the opposing party. Once you receive an offer, your decision to proceed carries a tangible cost risk.

05 Only bring necessary motions. Every motion leaves a mark on the overall costs, regardless of whether you win or lose.

This article is for general legal information only and does not constitute legal advice for specific cases. Cost awards are highly dependent on the facts of each case, and rule details may be subject to revision. Please consult a lawyer for your specific situation.

Miao He

Miao He, Barrister & Solicitor

Toronto Chinese Family Lawyer · Dual Licensed in Ontario & China · LSO #83315K

H. LAW FIRM｜208-7050 Woodbine Ave, Markham, ON L3R 4G8｜Phone: 647-930-6688
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Litigation Costs and Settlement Offers

Legal Costs in Ontario Divorce Litigation: Why Might You Pay the Opposing Party's Fees Even When You Win?

Mechanisms of Cost Awards and Practical Key Points

Five Practical Tips for Clients

Miao He, Barrister & Solicitor

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Legal Costs in Ontario Divorce Litigation: Why Might You Pay the Opposing Party's Fees Even When You Win?

Mechanisms of Cost Awards and Practical Key Points

Five Practical Tips for Clients

Miao He, Barrister & Solicitor

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